American Government Lecture Twelve

This final lecture is a good place to include some review. The United States is governed by “Rule of Law” rather than by a king or dictator. The “law” is the Constitution, and all federal laws applying it.

If you understand the Constitution, then you know about 50% of American Government. You would know that the roots of the Constitution were based in part on the ideas of European philosophers, such as the Englishman John Locke’s concepts of natural rights (life, liberty and pursuit of happiness) and the social compact theory of government, which inspired the Declaration of Independence, and the French philosopher Montesquieu, who inspired the separation of powers. You would know that the Constitution was drafted at the Constitutional Convention in the summer of 1787 in Philadelphia, because the Articles of Confederation that governed the colonies since 1781 did not create a strong enough federal government.

You would know that the Articles of Confederation were a failure. It lacked an Executive (e.g., a president) and a Judiciary (e.g., the Supreme Court). It could not impose taxes, regulate commerce or raise an army. Each State had one vote, and a unanimous vote of the States was required to amend it. 9 votes out of 13 was needed to do anything significant. Simply put, the federal government had almost no power to do anything under the Articles of Confederation.

The U.S. Constitution then created a strong federal government, and one that has grown in power continuously ever since. The Constitution established a bicameral legislature through the Great Compromise (House and Senate). It allowed continuation of slavery through the Three-Fifths Compromise, whereby slaves counted as 3/5th of a person for deciding how many representatives each state could send to the House. Slave trade was allowed for 20 more years.

Opposition to the Constitution was strong at the time, by the Antifederalists who opposed a strong federal government. Rhode Island opposed it until the very end because it wanted to retain its power to tax interstate commerce in its ports. It did not ratify the Constitution until after George Washington had become president and Rhode Island feared economic isolation if it did not join.

The main attribute of the Constitution, perhaps the key to its success, is its system of checks and balances between the Legislative, Executive and Judicial branches. Each protects its own “turf” and power, and that helps guard against tyranny. When President Truman ordered a government seizure of the steel mills to end union strikes in 1952, the Supreme Court stepped in and stopped him. Ponder how many other historical examples of “checks and balances” you know.

The Constitution has other remarkable features. Even before the Bill of Rights, the Constitution protected trial by jury and the right of an imprisoned person to force the government to explain why he is being detained (writ of habeas corpus). No religious tests are allowed for public office. Nobility is prohibited in all its forms. Laws passed to punish prior activity (an ex post facto law) or to declare an individual guilty (a bill of attainder) are also prohibited.

It is important to know the purpose of each Article in the Constitution. Here’s a quick review:

Art. I - enumerates powers for Congress.

Art. II - establishes the presidency and executive branch.

Art. III - establishes the Supreme Court and authorizes Congress to set up lower federal courts.

Art. IV - requires full faith and credit between the states; requires them to have republican govts.

Art. V - amendments are by 2/3rd vote by Congress and 3/4 of States to ratify, or by a constitutional convention (which has never occurred)

Art. VI - federal law is supreme (Supremacy Clause)

Art. VII - 9/13 of colonies was all that was needed to ratify the U.S. Constitution, unlike the unanimity required by the Articles of Confederation

Next came the Bill of Rights (Amendments 1-10), and subsequent Amendments after that. The Bill of Rights protect our liberties. The other amendments promote democracy, refined procedures for presidential elections, enacted and rescinded Prohibition, and addressed other miscellaneous issues. The Fourteenth Amendment and its limitations on the states is by far the most important outside of the Bill of Rights.

There are 17 additional Amendments beyond the Bill of Rights, for a total of 27 Amendments overall. The most important of the additional Amendments are:

Civil War Amendments (13th-15th):

13th Amendment abolishes slavery

14th Amendment limits the power of States, incorporates the Bill of Rights against them, and grants Americans rights of due process and equal protection

15th Amendment prohibits discrimination against voting based on race, and led to the Voting Rights Act of 1965 (which prohibits "literacy tests" as a condition of voting)

Progressive Era Amendments (16th-21st, important ones listed below):

16th Amendment authorizes the federal (national) income tax

17th Amendment provides for the direct election of U.S. Senators by the people, rather than by state legislatures

18th Amendment prohibits the sale of alcohol (this was repealed by the 21st Amendment)

Branches of the Federal Government

In addition to the Constitution, it is essential to understand the three branches of federal government: the Legislative (Congress), Executive (Presidency) and Judicial (Courts). Do we all know what each branch does?

Which declares war? (Congress)
Which invalidates laws? (Supreme Court)
Which commands the military? (President)
Which raises taxes? (Congress and President)
Which prosecutes criminals? (President, through the Dept. of Justice, by bringing cases in the federal courts) Who runs the Post Office? (Set up by Congress as authorized by the Constitution, and managed by Executive Branch) Where does money (currency) come from? (same) Federal District Courts? (Set up by Congress under Article III; judges are appointed by President; the system is run by the Judiciary)

It is important to understand how bills become federal law. A member of the House of Representative will sponsor a new piece of legislation (i.e., a “bill”). He tries to add as many co-sponsors to his bill as he can persuade. He introduces it into the appropriate committee. (By the way, the most powerful committee is “Ways and Means,” which handles taxation and spending.)

Usually the committee will have a subcommittee devoted to the issue, and the bill is addressed and revised in the subcommittee. Ultimately it comes up to the committee for a vote. If it passes, then it is sent to the House Rules Committee, which will determine the procedure for debate by the full House. Discussion and amendments may be limited. Then the entire House considers and votes on the bill according to the assigned rules. If it passes, then it goes to the appropriate committee in the Senate.

In the Senate the procedures are different. Once on the floor of the Senate, Senators can delay passage by filibustering the bill. If a “cloture” vote of 60 or more is attained, then filibusters are prohibited. But amendments are still allowed. If the Senate passes the bill and it is not identical to the House version, then the bills go to a conference committee staffed by House and Senate members. They reconcile any differences between the House and Senate versions, and the bill goes back to each for final passage. If it passes, then onto the President for signature. If he vetoes, then it goes back to Congress for a possible veto override (which is difficult to do - 2/3rds majority vote in the House and Senate are required to override a presidential veto).

Keep in mind what is responsible for the day-to-day operation of government. Congress employs only a few thousand people, and the Courts likewise have a small number of employees. But the Executive Branch of the federal government employs millions.

The 113th Congress

We began this course during the 112th Congress, and now the 113th Congress is in session. What is the difference?

Every two years, as required by the U.S. Constitution, the entire House of Representatives is elected and one-third of the U.S. Senate is also elected. The first week in the subsequent January after the November elections, the new (and returning) politicians are sworn into office, and a new "session" of Congress begins. There is a 1st and 2nd session of Congress, for the first and second years of its two-year term.

The 1st session of the 1st Congress was in 1789, after the elections of 1788. The 2nd session of the 1st Congress was in 1790. There were congressional elections in 1790 (but not a presidential election, because that did not happen again until 1792). Beginning in 1792 was the 2nd Congress, beginning in 1794 was the 3rd Congress, and beginning in 2013 is the 113th Congress.[1] The last bill passed by the 112th Congress was the fiscal cliff legislation approved during its "lame duck" proceeding on New Year's Day. It was "lame duck" because many who voted on the bill had already been defeated in the November elections.

No legislation sponsored, introduced or even passed by one chamber of Congress carries over to the next Congress. Each new Congress starts with a blank slate. But this 113th Congress has bigger challenges than most: the United States is 16 trillion in debt, and the "debt ceiling" (the maximum amount allowed by law for the United States to borrow) must soon be raised to an even higher level for the government to continue to operate as it has been.

Each new Congress makes new committee assignments. As mentioned above, the most powerful committee in the House of Representatives is considered to be the "Ways and Means Committee," because it makes decisions about spending trillions of dollars. The most powerful committee in the U.S. Senate is the Judiciary Committee, because it votes on whether to confirm judicial nominees to the federal courts (including the U.S. Supreme Court). The entire Senate votes on the president's nominations to the federal courts, but it can only vote on those who are approved first by the Judicial Committee. If the Judiciary Committee rejects a nomination (or delays it), then the full U.S. Senate never votes on the nomination.

It is almost impossible for one member of the House of Representatives, which has a total of 435 congressmen, to be able to block a vote. But in the U.S. Senate, which has only 100 members, substantial power is given to each individual senator. "Senatorial prerogative" gives an individual senator the power to block the confirmation of a judicial nominee to a federal court in his State. An individual senator can also place a hold (block) nominations by the president to other positions.

If merely 41 senators (out of 100) object to a bill, then they can prevent the majority from voting on it in the U.S. Senate. This is a "filibuster", and it is unique to the U.S. Senate. There is no filibuster power in the U.S. House of Representatives, or in most legislative entities.

Court decisions

About 5% of an American Government exam asks about specific, important U.S. Supreme Court cases. For example, a question could ask about the "one man, one vote" principle that we discussed in the last lecture. The two decisions by the U.S. Supreme Court that required state legislatures to draw their legislative districts in equal proportion, by population, to each other was Baker v. Carr (1962) and Reynolds v. Sims (1964). Baker v. Carr first held that the U.S. Supreme Court had the power to decide this issue concerning state legislatures, and then Reynolds v. Sims was the decision that applied the Equal Protection Clause of the 14th Amendment to require that both houses of a state legislature be apportioned on the basis of population (rather than geography).

This was important for several reasons. First, the U.S. Supreme Court used the 14th Amendment to tell state legislatures what they could do. That was unheard of before the 14th Amendment passed. Originally, States considered themselves to be more powerful than the federal government, and States did not expect federal courts to tell them what they could do. Indeed, the 11th Amendment was passed in order to limit the power of federal courts with respect to the States.

But the "one man, one vote" also made high-population areas, such as cities, more powerful in State legislatures, which helped Democrats and hurt Republicans. These court decisions shifted some power at the State level from Republicans, who are more popular in rural areas, to Democrats, who are more popular in cities.

State legislatures can still engage in "gerrymandering" in drawing legislative districts, both for State legislatures and for Congress, in ways to favor one political party or the other. Obama, a Democrat, won the most votes in Pennsylvania but, due to gerrymandering, Republicans won most of the congressional districts.

Public Policy and Everything Else

In addition to the U.S. Constitution and functions of the three branches of the federal government, what is left to this course? Political parties, interest groups, the media, and public opinion (as illustrated by polling).

The president has influence partly because of the authority granted to him by the Constitution, and partly because the media finds it easier report on him rather than on thousands of items of local news. Because of the media's attention to the president, he has a “bully pulpit.” When the president says something, the media are more likely to repeat it than when others say something. But, due to the heightened attention, a president almost never speaks freely about any controversial issue. Most of what a president says is "politically correct" rather than honest or insightful. President Obama reads from a teleprompter that tells him what to say, and it is as bland and uncontroversial as the print on the back of a cereal box.

Some view the president as just another bit player in a system that has grown far bigger than anyone can control. We now live in the “regulatory state,” where massive regulations govern most aspects of our lives. Inevitably government grows larger and the regulations become more complex. Under this characterization of government, there is nothing the president or anyone else can do about it, except perhaps slow the growth a bit.

Despite how much the federal government has grown, much remains unregulated in American life. We do not have racial quotas in business, though there is affirmative action to encourage greater participation by minorities in institutions like colleges and large corporations. We do not have "comparable worth" by which the government would set equal wages for men and women. We do not have the 14th Amendment applying to purely private activities, like the Boy Scouts. Struggles continue on both sides of these and other controversies, but America remains by far the most free major country in the world.

The Funding of Government: Taxes

Government needs funding in order to run, and the lack of funding for the federal government under the Articles of Confederation was a problem. Here is a brief look at the two types of taxes used to fund government: "direct" and "indirect" taxes.[2] A "direct" tax is how the Roman Empire funded itself: each adult must directly pay a certain tax, whether he has income or not (also known as a "head tax" or "capitation tax," because it is applied per person). Jesus and the Apostles had to pay this type of tax, because they were in the Roman Empire. Another example of a "direct" tax is a tax on real estate, which the federal government imposed in its early years but does not anymore. (Now State and local governments impose real estate taxes.)

Many taxes are "indirect" in nature, such as "excise taxes." An excise tax is based on an activity, such as a sale of a product from a business to a customer. It is a tax on activity rather than on a person or on property itself. An example of indirect or excise federal taxes are the taxes on gasoline, and in telephone bills.

The distinction between "direct" and "indirect" taxes is important because the original U.S. Constitution, in Art. I, Section 9, Clause 4, limits "direct" taxes by the federal government to what can be apportioned among the population. This prevents the federal government from taxing wealthy people more than poor people. If a tax is "indirect", then it is not limited by this provision, which enables the federal government to tax business activity without limitation. The Sixteenth Amendment gives the federal government unlimited power to impose income taxes in any way it chooses, enabling it to require wealthy people to pay far more in taxes than poor people pay.

The lawsuits against ObamaCare have reopened this issue because ObamaCare imposes a penalty (under Congress's taxation power) on people who decide not to purchase adequate health insurance. This is not an income tax, so it should not be authorized by the Sixteenth Amendment. This is not an excise tax, because it applies when there is no activity (declining to purchase government-approved insurance). Is it a "direct" tax? If so, then it would not be allowed unless it is apportioned by population, such that wealthy people pay no more than poor people. If it is an "indirect tax," then it may be allowed under Article I, Section 8, Clause 1: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises." Lawsuits are pending to challenge ObamaCare based on what kind of tax it imposes, and federal courts will be deciding this issue in the next year or so.

Conclusion and Review

A government course -- and the final exam -- has these components:

50% relate in some way to the U.S. Constitution and key Amendments

30% three branches of the federal government and what they do, and the role of state governments (federalism)

10% interest groups, lobbying, political parties, and elections

10% the media, public opinion, and polling

Many questions on a government exam require building on what you've learned, without your having seen or memorized the specific answer to the question. You are expected to use logic and reasoning to extrapolate from what you have learned about government, in order to answer the question correctly. For example, a question may ask if the U.S. Supreme Court could order families not to be larger than a certain number of people (as in China). By knowing that the U.S. Constitution limited the power of the federal government, you would be right to conclude that the U.S. Supreme Court could never issue an order that sets a maximum family size.

Specific Questions That You Should Be Able to Answer Correctly

U.S. Constitution/Amendments:

What does it mean that the U.S. Constitution established a national government of limited, enumerated powers?

What Articles of the U.S. Constitution establishes which branch of government?

What are the most significant Amendments in the Bill of Rights, and what do they mean?

What are the most significant Amendments after the Bill of Rights, and what do they mean?

When and why was the U.S. Constitution written and ratified?

What does"federalism" mean?

What does "separation of powers" mean?

What do "checks and balances" mean?

What does "judicial activism" mean?

What is incorporation doctrine?

What is the "Elastic Clause"?

How is the Constitution amended, and what is an example of a proposed amendment that was never ratified?

What is a "strict constructionist"?

Three branches of the federal government and what they do:

What are the three major levels of the federal court system?

Are federal judges elected? If not, why not? Are state judges elected?

Explain how Congress can pass a law without the president approving.

What are some of the major powers of Congress?

What powers does a president have?

What is a filibuster, and a "senatorial prerogative"?

What happens when the House of Representatives passes a bill, and the Senate passes a modified version of the same bill?

Which decision(s) established "one man, one vote," and which decision prohibited classroom prayer in public schools?

What decision caused more than a million abortions per year to occur in America?

Which branch of government handles foreign policy issues the most?

What is a "lame duck"?

What is the difference between a "direct tax" and an "indirect tax"?

Interest groups, lobbying, political parties, and elections:

How often are members of the House of Representatives elected, how often are senators elected, and how often is a president elected?

What is gerrymandering?

What are the two major political parties, and what entities run them?

What is "lobbying"?

What is a "Super PAC"?

What is "early voting"?

What are some examples of interest groups, and what is their significance?

What did the Citizens United decision accomplish?

How often is the Republican National Convention held, and what does it do?

Is there ever a "national referendum"?

The media, public opinion, and polling:

What are some examples of parts of the media, ranked by their influence?

What does a pollster do, and how can be influence his results?

How does public opinion relate to demographic characteristics?

What is a "trial balloon," and how does it relate to the media?

How is voter turnout related to age?

How do the media influence politics?

The "gender gap" tends to favor which political party?

Who are the "grassroots"?

What is an "initiative", and what is a "referendum"?

How did young voters influence the outcome of the 2012 presidential election?

Homework

Answer any two of the questions in each category above, for a total of eight questions, and begin studying for the final exam.

Extra credit: answer an additional question in each category above, for an overall total of 12 questions.